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Clemons v. City of Memphis

United States District Court, W.D. Tennessee, Western Division

December 28, 2016

DAVIN D. CLEMONS, Plaintiff,
v.
CITY OF MEMPHIS, TENNESSEE; and MEMPHIS POLICE DEPARTMENT, Defendants.

          ORDER GRANTING DEFENDANTS CITY OF MEMPHIS AND MEMPHIS POLICE DEPARTMENT'S MOTION ON THE PLEADINGS TO PARTIALLY DISMISS PLAINTIFF'S TITLE VII CLAIM

          JON P. McCALLA UNITED STATES DISTRICT COURT JUDGE

         Before the Court is Defendants City of Memphis and Memphis Police Department (collectively “Defendants”)'s Motion on the Pleadings to Partially Dismiss Plaintiff's Title VII Claim, filed October 19, 2016. (ECF No. 19.) Plaintiff Davin Clemons filed a response in opposition on November 16, 2016. (ECF No. 21.) Defendants filed a reply on November 30, 2016. (ECF No. 22.) For the reasons stated below, the Court GRANTS Defendant's Motion on the Pleadings to Partially Dismiss Plaintiff's Title VII Claim as to Plaintiff's claim of discrimination based on sexual orientation WITH PREJUDICE, and as to Plaintiff's claim of discrimination based on gender stereotyping WITHOUT PREJUDICE.

         I. BACKGROUND

         Plaintiff Davin Clemons, a TACT officer for Defendant Memphis Police Department, brings suit against Defendants City of Memphis and Memphis Police Department, for damages and injunctive relief for discrimination, harassment, and retaliation against him based on his sexual orientation, his position at the police department as an LGBTQ Liaison, his disability, and his religion. Plaintiff asserts violations of Title VII of the Civil Rights Act, the Fourteenth Amendment and local ordinance, and the Americans with Disabilities Act. (Compl., ECF No. 1.)

         Plaintiff's Title VII claim specifically seeks relief for “[t]he harassing and discriminatory actions, conduct and/or omissions . . . [that] were motivated by Officer Clemons' sex (male) in that sexual orientation discrimination encompasses treating an employee less favorably because of his sex (in that Officer Clemons did not conform to sex stereotypes and norms) . . . [and that occurred] because the other employees and [Plaintiff's] objected to [his] having romantic and sexual association with a male partner.” (Id. ¶ 116.)

         The alleged actions Plaintiff deems discriminatory based on his sex and sexual orientation include being told that superiors did not approve of Plaintiff's “homosexual lifestyle” (id. ¶¶ 47, 57); the circulation of Plaintiff's engagement video in the workplace in conjunction with Defendants' employees “mocking and making negative comments about the engagement of Officer Clemons to a same-sex male Officer and that Officer Clemons is gay” (id. ¶ 91); the disparate treatment by Defendants' employees of Plaintiff compared to heterosexual officers (id. ¶¶ 45, 69, 88); and the inconsistent application of department policies as applied to Plaintiff (id. ¶¶ 40-42, 48, 56, 58, 68-70, 78-80).

         On October 19, 2016, Defendants moved to dismiss Plaintiff's Title VII claim, asserting that “Title VII prohibits discrimination based on sexual orientation, and Plaintiff has failed to state a claim for discrimination based on sex stereotyping.” (ECF No. 19 at PageID 85.) Plaintiff argues that Title VII “should be read and interpreted to encompass discrimination due to sexual orientation, ” but even if the Court rejects this interpretation, “Plaintiff has asserted sufficient facts to support a claim of sex discrimination due to gender stereotyping and gender non-conforming conduct under Title VII.” (ECF No. 20 at PageIDs 101-02.)

         II. LEGAL STANDARDS

         A. Motions to Dismiss for Failure to State a Claim Under Title VII

         Federal Rule of Civil Procedure 12(c) governs motions for judgment on the pleadings. Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). A motion for judgment on the pleadings is treated the same as a motion to dismiss under Rule 12(b)(6). Id. Pursuant to Rule 12(b)(6), a court may dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. . . . A claim is facially plausible when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. . . . [T]he court need not accept as true allegations that are conclusory or require unwarranted inferences based on the alleged facts.

Newberry v. Silverman, 789 F.3d 636, 640 (6th Cir. 2015) (citations and internal quotation marks omitted).

         “Plausibility is not the same as probability, but it requires ‘more than a sheer possibility that a defendant has acted unlawfully.'” Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d 149, 157 (6th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). A court must “construe[] the complaint in a light most favorable to the plaintiff.” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012).

         Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an individual “with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “In order to establish a prima facie case of sex discrimination under Title VII, a plaintiff must show (1) that he is a member of a protected class, (2) that he was subject to an adverse employment decision, (3) that he was qualified for the position, and (4) that he was treated differently than a similarly situated individual outside the protected class.” Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006). Notably, for Title VII claims, the plaintiff is not required to establish a prima facie case to withstand a motion to dismiss for failure to state a claim. Swierkiewicz v. ...


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